Legislators in Maryland will soon vote on a controversial new law that
will essentially overturn a judge's decision dismissing 9 of 13 counts
in the state's lawsuit against tobacco companies.

Critics say it's a case of the plaintiff in a lawsuit changing the law
during the trial.

Background: Maryland State Attorney General J. Joseph Curran signed
a deal with trial attorney and Baltimore Orioles owner Peter Angelos to
sue tobacco companies for $13 billion. $3 billion is to recover funds spent
by Maryland's Medicaid program to treat tobacco-related health problems;
$10 billion is punitive damages. If Angelos wins, the agreement says he
gets to keep 25% of the take, plus expenses.

In early court action in the case last May, Baltimore Circuit Court
Judge Roger W. Brown dismissed 9 of Angelos's and the state's 13 counts
in the lawsuit. This left four counts to be decided at trial.

But Attorney General Curran now wants the state legislature to re-write
state laws to essentially nullify Judge Brown's decision before the case
comes to trial, so Maryland and Angelos will be more likely to win in court.
He's urging the public to support these laws, Senate Bill 652 and House
Bill 972, even going so far as to write and circulate on his official web
site a sample letter to the editor in support of the legislation for Marylanders
to copy, sign, and mail to newspapers as their own.

But to support this bill is to believe defendants (at least unpopular
ones) don't have a right to a fair hearing under neutral laws. It's simply
not right for the state to change the laws under which a trial is being
held after the legal proceedings have already begun -- especially since
the state has a financial interest in the case.

The Attorney General and supporters of this bill should rethink this
bill and their legal strategy against the tobacco companies. Here's why:

Private citizens should not benefit from public laws. If the Maryland
legislature passes Senate Bill 652 and House Bill 972 Attorney Peter Angelos
stands to make as much as $3,250,000,000.00, not counting expenses. The
state government should not be passing laws intended to increase the likelihood
that any private citizen will have a billion-plus dollar payday.

The state doesn't need to pay Angelos or any other private attorney
up to $3.25 billion to win a tobacco case. The state had revenues over
$13 billion in 1997, and can easily afford to pay the best attorneys around
the highest going hourly rate. This would allow the state to keep a billion
or more extra dollars from the proceeds of a winning tobacco lawsuit --
proceeds that could go directly into state services or tax refunds.

The state doesn't need to sue tobacco companies at all if it wants
money from them: All it has to do is raise tobacco taxes. By suing tobacco
companies instead of raising taxes, Maryland is engaging in a risky strategy
when no risk needs to be taken. Maryland can lose the lawsuit, but no judge
or jury will stop the legislature from raising tobacco taxes.

The state's contention that it is owed reimbursement for expenses it
has incurred because of tobacco may not prevail in court because tobacco
is actually profitable for the state. An analysis in the summer 1997 issue
of Regulation magazine by W. Kip Viscusi, Cogan Professor of Law
and Economics and Director of the Program on Empirical Legal Studies at
the Harvard Law School, shows that the state of Maryland profits 43.8¢
for every pack of cigarettes sold in the state. Ghoulish as it may seem,
this is true because smokers' shorter life spans decrease their total lifetime
medical costs and old-age costs such as nursing home expenditures. Due
to this fact and the revenue Maryland receives from tobacco taxes, tobacco
is a profit-maker for Maryland.

Politicians supporting the state's lawsuit against tobacco companies
have a variety of motivations. Some want to see the state make money without
having to raise taxes because raising taxes can be unpopular. Other public
officials want good publicity by railing against politically-incorrect
tobacco companies. And some politicians are truly motivated by a desire
to stop people from tobacco-related health problems. Officials so motivated
should stop equivocating and be true leaders. Either smoking is a choice
or it isn't. If it is, then individuals should be responsible for the consequences
of their own decisions. If it isn't, then the legislature should simply
ban tobacco.

Amy Ridenour is president of The National Center for Public Policy
Research in Washington, D.C. Comments may be sent to [email protected]